1984 PLP 1047 (MLD)

(b) Civil Procedure Code (V of 1908)

O. VI, r. 5--Suit--Decleratory suit with partition of property as alternative relief--Governing principles-- Declaratory suit being for partition of property as well, it was necessary for Court to first ascertain value of property before dealing with suit and same should have been ascertained under provisions of O. VI, r. 5., C.P.C. and question of pecuniary jurisdiction and ascertainment of correct court-fee, could be decided later on. Fatal Bhoy for Applicant. Sadruddin Huda for Opponents. Date of hearing: 4th September, 1984. In this revision the order of the Civil Judge rejecting an application under Order VII, rule 11, C.P.C. has been challenged. The respondent has filed a suit for declaration and injunction claiming to be the exclusive owner of the properties left by his deceased brother Bashir and mentioned in schedules A to C of the plaint on the basis of a declaration made by the deceased in favour of the plaintiff. However, the properties' value had not been mentioned. In the alternative, the plaintiff had also claimed the partition of the properties mentioned in the schedules A to C by metes and bounds but here again the value of the property was not shown.

2. The petitioner applied under Order VII, rule 11, C.P.C. for rejection of the plaint on the ground that proper court-fee had not been paid and the provision of Order VI, rule 26 (1)(a) and (b) had not been complied with and also on the ground that the suit had been filed in wrong Court as the value of the property was more than Rs.25,

000. The trial Court accepted the contention of the petitioner to the extent of non-compliance of provisions of Order VII, rule 19(1) and Order VII, rule 26(1)(a) and (b), and directed the plaintiff to comply with the same. However, the Court found that Order VI, rule 15(1) and (2) and Order VII, rule 26(1-A) had been complied with. The Court also found that in view of the deed of declaration alleged to be made by the deceased the cause of action was disclosed in the plaint.

3. However, in respect of the matter of court-fee the Court held that the question of court-fee could be determined only after the recording of evidence and by that the trial Court probably held that after recording the evidence of the parties in respect of the valuation of the property the Court would determine their valuation and then find whether the proper court-fee had been paid or not.

4. However, in respect of the question of pecuniary jurisdiction the Court held that it had the jurisdiction of the declaration and injunction for property worth any amount.

5. Mr. Fazal Bhoy, learned counsel for the appellant has relied upon PLD 1967Kar.468 where it was held that the question of pecuniary jurisdiction has to be considered independently of the provisions of the Court Fee Act and Suits Valuation Act. He has, therefore, argued that the learned trial Court had to consider the question of pecuniary jurisdiction in the light of the value of the property and was thus bound to find the value of the property. Mr. Fazal Bhoy had also contended that the question of court-fee should have also been considered at that time. I am in agreement with Mr. Fazal Bhoy that the question of pecuniary jurisdiction of the Court is of primary importance because that is the basis of entertainment of a suit. I find from the plaint that the value of the property has been omitted to be mentioned by the plaintiff and, therefore, the pecuniary jurisdiction was determined by the learned Civil Judge on the basis of the value put upon the suit for the purposes of relief for declaration and injunction. This was, however, not correct. In this respect what the Court should have done was that it should have ordered the plaintiff to supply the particulars of the value of the property mentioned in the 3 schedules and then it should have come to the conclusion as to whether a correct valuation on the relief sought has been made or not. In P L D 1973 Kar. 653, it was held that it was not open to the plaintiff to put arbitrary value on plaint and that a suit for declaration and also for injunction was a suit for declaration and consequential relief and hence it was governed by section 7(iv) (c) and Article 1 of the first schedule of Court Fee Act. Since the suit was in the alternative for partition of property as well, therefore, it was necessary for the Court to ascertain the value of the property first before dealing with the suit and since the plaintiff had failed to mention the value of the property, therefore, the same should have been ascertained under the provision of O. VI, r. 5 of Cr.P.C. and then the question of pecuniary jurisdiction and ascertainment of correct court-fee could be decided. But this was not done. Therefore, I am of the view that the order of the Court below on the question of pecuniary jurisdiction and court-fee was passed with material irregularity, without ascertaining the value of the property involved. Consequently, this revision is partially allowed to the extent that the case is remanded back to the trial Court for decision in respect of the pecuniary juris?diction and the court-fee after ascertaining and determining the value of the properties. This revision is rejected in other respects. Revision is thus partly allowed. A . A .????????????????????????????????????????????????????????????????????????????????????? Revision partly allowed.